Implying misconduct

Labour & European Law ReviewWeekly Issue 43029 July 2015

It is established law that employees can owe a duty to their employers to disclose their own misconduct in certain circumstances. However, the Employment Appeal Tribunal (EAT) has clarified in The Basildon Academies v Amadi that, in the absence of an express contractual term, tribunals cannot imply a duty to disclose an allegation of impropriety, however ill-founded.

Basic facts

Mr Amadi worked as a cover supervisor on Thursdays and Fridays for Basildon Academies. In September 2012 he also accepted a zero hours contract with Richmond College to work between Monday and Wednesday. He did not tell Basildon about the other job although this was in breach of an express term of his contract with them.

In December 2012 he was suspended by Richmond following allegations of sexual assault by a female pupil. He was arrested and bailed but not prosecuted. In March 2013, the police contacted Basildon and told them about the allegation. The Academy then dismissed him for gross misconduct in July 2013 because he had deliberately failed to tell them about his employment at the other college and had also not told them about the allegation of sexual misconduct.

Mr Amadi claimed unfair dismissal.

Tribunal decision

The tribunal agreed that he had been unfairly dismissed as Basildon could not produce any policies which expressly required him to report the allegation of sexual assault. The decision to dismiss Mr Amadi for failing to report the allegation, when there was no evidence of a rule that he should report it, was outside the band of reasonable responses of a reasonable employer. However, it found that he had contributed to his dismissal by 30 per cent because he had failed to tell Basildon about the other job.

The Academies appealed on the basis that Mr Amadi was under an implied contractual obligation to inform them of the allegations made against him at Richmond.

EAT decision

The EAT, however, disagreed. Although the Court of Appeal decided in Item Software (UK) Ltd v Fassihi that employees owe a duty to their employers to disclose their own misconduct in certain circumstances, they could not be required to disclose an allegation of impropriety however ill-founded. Nor could the law impose an implied obligation on employees.

That being so, Mr Amadi had not breached his contract by failing to disclose the allegation made against him by the pupil at Richmond College. If he was not in breach in failing to make that disclosure, the EAT held that it was “difficult to see how that omission could amount to misconduct at all, let alone misconduct sufficient to justify dismissal”.